## Facts

- Edward Hines Lumber Company operated a wood-treatment facility in Mena, Arkansas (1967–1978) using preservatives including chromated copper arsenate (CCA), pentachlorophenol, and creosote.
- After Hines sold the facility to Mid-South Wood Products, the EPA determined the site was contaminated and placed it on the national priorities list under CERCLA.
- Hines and Mid-South entered a consent decree with the EPA to perform cleanup work, nearing completion at a cost close to $5 million.
- Hines sued multiple chemical suppliers seeking to shift or share cleanup costs; only Osmose Wood Preserving, Inc. remained at the appellate stage.
- Under a “Hines–Osmose Agreement,” Osmose advised on siting the CCA system, designed/constructed/installed it, trained Hines personnel, and supplied CCA; Osmose also had contractual inspection and advisory rights.
- Hines sought CERCLA contribution from Osmose, alleging Osmose was an “owner or operator” or otherwise liable under 42 U.S.C. § 9607(a).

## Issues

1. Whether a party that designs and installs a treatment system, supplies chemicals, trains employees, and retains inspection/advisory rights is an “operator” under 42 U.S.C. § 9607(a).
2. Whether CERCLA § 113(f)(1) permits contribution absent a showing that the defendant is “liable or potentially liable” under § 9607(a).

## Decision

- The Seventh Circuit affirmed summary judgment for Osmose.
- The court held that § 113(f)(1) contribution is available only against persons “liable or potentially liable” under § 9607(a).
- Osmose was not an “operator” because it did not manage day-to-day facility operations or control pollution-related decisions concerning disposal or compliance.
- With no other viable § 9607(a) basis for liability, Osmose could not be held responsible for contribution.

## Legal Principles

- A CERCLA § 113(f)(1) contribution claim requires that the contribution target fall within a § 9607(a) category of covered persons (e.g., current/past owner or operator, arranger, or transporter).
- “Operator” liability under CERCLA requires actual managerial control over facility operations relevant to pollution, including waste handling, disposal, or environmental compliance decisions; providing technical services, equipment, training, or advice is insufficient without such control.
- Contractual rights to inspect or advise do not, without operational control, convert a consultant/supplier into a CERCLA operator.

## Conclusion

The court limited CERCLA contribution to defendants with actual or potential § 9607(a) liability and rejected “operator” status for a consultant/supplier whose involvement, though extensive, did not include control over the facility’s day-to-day or pollution-related operations.


Edward Hines Lumber Co. v. Vulcan Materials Co., 861 F.2d 155 (7th Cir. 1988)